Court File and Parties

COURT FILE NO.: FS-21-00024590-0000 DATE: 20241205 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bita Khoshbin, Applicant AND: Mehrdad Shirvani, Respondent

BEFORE: Mathen J.

COUNSEL: Isaac Birenbaum, for the Applicant Mehrdad Shirvani, Self-represented

HEARD: December 5, 2024

Endorsement

Background

[1] The parties, Bita Khoshbin (“Applicant”, “Ms. Khoshbin”) and Mehrdad Shirvani (“Respondent”, “Mr. Shirvani”) had a relationship between 2015 and 2020. They have two biological children. The Respondent stood in the place of a parent for the Applicant’s eldest child. The children are 10, 7 and 5 years old.

[2] The relationship was volatile with numerous separations.

[3] As observed by Justice Kristjanson in an earlier endorsement, both parents have been convicted of assault on the other. Mr. Shirvani took care of the children from July 30, 2020 until July 07, 2021. Ms. Khoshbin was in jail for part of this time. Mr. Shirvani provided primary care to the children during this period. Mr. Shirvani was then charged with assault on Ms. Khoshbin in September 2021 after which she took on primary care of the children.

[4] A 2023 VOC clinician report recommended the following:

a. Final say to the Applicant in regard to major decision-making involving the children; b. Children to have primary residence with the Applicant; c. Respondent to have parenting-time with the children as follows: i. Every Wednesday overnight, from the close of school on Wednesday until the return to school on Thursday; ii. Alternate weekends; and iii. Holiday and vacation periods.

[5] The parties were set to have a nine-day trial on November 11, 2024. The issues for the trial were parenting, decision-making and child support.

[6] At an exit pre-trial conference on October 21, 2024, Justice Hood noted that the Respondent has been unable to exercise his alternate weekend parenting time as he lost his job in March 2024 and lacks a suitable visiting space. Justice Hood noted that the original clinician, Mr. Reid, had recently suggested that an updated report would be “very helpful due to recent changes with the children.” Justice Hood accordingly rescheduled the trial for September 22, 2025. He then granted “leave for either party to bring a one-hour motion to vary the current parenting time arrangements and child support.”

[7] Ms. Khoshbin deposes that an updated OCL report has been requested.

[8] Ms. Khoshbin has brought this motion seeking the following:

a. Sole decision-making (at the hearing the mother confirmed that this includes primary parenting); b. Parenting time for the Respondent for 8 hours every Saturday (this request was amended, as discussed below); c. Leave to travel without consent of the Respondent; and d. Child support payable by Mr. Shirvani, retroactive to October 1, 2021, based on an imputed income to him of $60,000 a year.

The Motion and Analysis

[9] The Applicant attended with counsel. The Respondent attended, self-represented. The OLC clinician, Mr. Reid, also attended. The Court excused Mr. Reid as the written record provided a sufficient basis to proceed.

[10] No facta were filed. Mr. Shirvani acknowledged receiving notice of today’s motions. He filed no materials.

[11] Ms. Khoshbin’s counsel points out that she has had de facto parenting and decision-making for three years.

[12] Given Ms. Khoshbin’s uncontested evidence and the recommendations contained in the 2023 OCL report, I am persuaded on a balance of probabilities that awarding her primary parenting, sole decision-making, and travel without the need for the father’s consent is in the children’s best interests.

[13] Notwithstanding his lack of materials, I asked the Respondent to comment on the suggestion of parenting time on Saturdays. Mr. Shirvani advises that he currently lives 150 kilometers from Toronto. Accordingly, my order will grant him parenting time for 4-6 hours on Saturdays conditional on one week’s notice to Ms. Khoshbin.

[14] I am unable to impute $60,000 of income to the Respondent. The only information in support of this amount is the mother’s sworn belief that it is reasonable. This is an insufficient basis for imputing income: Drygala v. Pauli.

[15] The mother suggests that the father’s NOA from approximately 2020 to 2022 suggest an income of $25,000. Those notices could not be found in the record.

[16] The Applicant’s request for child support is dismissed without prejudice for her to file a new motion supported by the necessary evidence to determine or impute an income to the Respondent.

[17] The Applicant requests costs of $2500. She has prevailed on part of her motion and the Respondent did not submit any materials. I find these costs appropriate.

ORDER

[18] In conclusion, I make the following order:

a. Subject to further order of this Court, the Applicant, Bita Khoshbin, shall have sole decision-making responsibility for the three children of the parties, namely, A.K.S., born June 3, 2014; A.S., born May 15, 2017; and P.S. Shirvani, born March 13, 2019. b. Subject to further order of this Court, the children’s primary residence shall be with the Applicant. c. Subject to the further order of this Court, the Applicant may travel with the children inside and outside of Canada without the Respondent’s consent. d. Subject to further order of the Court, on seven days’ notice to the Applicant the Respondent may exercise parenting time for a period of four to six hours on Saturdays. e. There shall be no direct communication between the Respondent, Mehrdad Shirvani, and the Applicant, Bita Khoshbin, other than what is necessary for the interests of the children. Communication between Mr. Shirvani and Ms. Khoshbin shall take place by using AppClose. f. The Applicant’s request for retroactive and ongoing child support is dismissed without prejudice for her to bring a further motion supported by evidence including any required disclosure by the Respondent to determine or impute his income. g. The Respondent shall pay to the Applicant costs of this motion fixed in the amount of $2500 inclusive of disbursements and HST. h. The Respondent shall pay to the Applicant post-judgment interest on any amounts outstanding commencing 30 days from the date of this Order in accordance with section 129 of the Courts of Justice Act. i. If required, counsel may forward a draft order for my signature care of my assistant Linda.Bunoza@ontario.ca.

Mathen J. Date: December 5, 2024